Kotagiri Venkataramarayanim and Others vs Partibanda Basavayya

Arnold White, C.J.—I have had the advantage of , reading the judgment which Miller J. is about to deliver and I agree with his conclusion.

Both the learned judges by whom this appeal was first heard seem to have concurred in the view that the property attached was according to

the law in force when the attachment took place, Immovable property. On the argument of the appeal before us, it was not seriously contended

that they were wrong as to this.

In this case both land and crops were attached in the first instance, though the attachment of the land was afterwards raised. It seems to me that

the plaintiff''s cause of action was trespass to land within the meaning of Article 39. If this is so, the period of limitation is 3 years and the suit is in

time. The alleged trespass took place on December 13th 1906, and the present suit was instituted on November 18th, 1909.

In Narasimha Rao v. Gangaraju ILR (1908) M. 431 a majority of the court were of opinion that as regards the question of limitation raised in

that case Article 29 applied. That case was dealt with rightly or wrongly, on the footing that the property attached was moveable property.

The case is distinguishable on this ground.

In The Madras and Southern Mahratta Railway Co., Ltd., Madras Vs. Bhimappa and Another, the property attached was unquestionably

moveable property. That case is therefore also distinguishable on the same ground.

I think the appeal should be dismissed with costs.

Miller, J.

The allegations in the plaint are briefly put the following:

The defendants illegally procured the attachment of the plaintiff''s land with the crop standing on it. The attachment of the land was removed but not

that of the crop, and while under attachment, part of the crop was lost by theft, and part owing to negligence and failure to harvest it at the proper

time. The remainder was sold by the court and proceeds were received by the defendants. The prayer is for a decree for a sum equal to the full

estimated value of the crop. The present suit was instituted on November 18th 1909.

The cause of action is dated by the plaintiff of the attachment (the 15th December 1906) or alternatively as of the date on which he obtained a

decree declaring his title to the land (the 22nd September 1909) : If the latter date can be admitted as that of the origin of the cause of action, the

suit is certainly in good time, and this is the view taken by Sundara Aiyar J. in the C.M.A. If the earlier date is that which must be adopted, then, as

the suit was instituted more than two and less than three years after that date, it will be barred by limitation if the period applicable is two years

under Article 36 of Schedule I of the Limitation Act of 1908 or any shorter period, but it will not be barred if the period is 3 years. Sadasiwa Aiyar

J. held, I think, that the article applicable was either 36 or 29, and that the starting point of limitation was the date of the attachment and so was for

dismissing the suit.

It will be seen that the attachment is alleged to be the cause of the loss of the crop, and the suit is for damages consequent on the attachment and

is not framed as a suit for the recovery by the plaintiff of anything illegally gained by the defendants and held by them for him. It may be that as to

part of the crop it might have been so framed but it is not.

I do not think it necessary to decide the question whether the starting point of limitation is the date of the decree, because I am able to accept

the view pressed upon us on behalf of the respondent that the suit is governed by the specific Article 39 and consequently the general Article 36 is

not applicable.

As Sundara Aiyar J. has pointed out, standing crop was at the time of the attachment in the present case, generally held in India to be

Immovable property, and it seems therefore that the illegal attachment of the land with the crop thereon is a trespass on Immovable property. The

suit is simply a suit to make good the loss i. e. for compensation for the damage, consequent on the attachment. I am unable to see why Article 39

should not be applied to a trespass under color of legal process; the language is wide enough to cover the case, and in Jadunath Danduput v.

Harikar ILR (1908) C. 141 this article was applied by Doss J. to a case of a distraint under process obtained from the court by a person not

entitled to distrain. Rampini J. differed but only on the ground that the acts complained of were trespass and something else and not a mere

trespass, and no oneseems to have suggested that the fact that the trespass wasunder color of legal process ought to remove the case from the

article.

In Haricharan Fadikur v. Hankar ILR (1905) C. 459 it was held that Article 36 was the article applicable to the case; I find it somewhat

difficult to reconcile the judgment of Maclean C. J. in that case with his judgment in Mangun Jha v. Dolhin Golab Koer ILR (1998) C. 692 where

he was for applying Article 39 or Article 49 to a similar case; but the opening sentence of the later judgment suggests that possibly the contest was

only between Articles 29 and 36, and it may be that in as much as the period of two years was enough to save the plaintiff the possibility of a

longer period was not very carefully considered. It was not necessary to search for an article specifically covering, the case, because, even if no

such article was to be found, the general Article 35 was applicable and was sufficient for the plaintiff''s purpose, and tharefore, though the larned

Chief Justice observes that there is no specific article applicable, it may be that all that he had considered minutely was whether there was a

specific article prescribing a shorter period than two years.

I respectfully agree with the reasoning which led Doss J. to apply Article 39 in Jadunath Danduput v. Harikar ILR (1908) C. 141 and I think

that reasoning warrants the application of that article to the present case.

I would therefore dismiss this appeal with costs.

Oldfield J.

I concur and have nothing to add to the judgment of Mr. Justice Miller.